Monday marked the start of the 2013 federal fiscal year, and with it the release of a new batch of H-1B visas.

The 85,000 H-1B visa cap, including the 20,000 visas that are set aside for advanced degree graduates with STEM (Science, Technology, Engineering and Math) degrees, was exhausted in less than two months this year. And some STEM students, who were unable to get an H-1B visa, may use the Optional Practical Training (OPT) program as a lifeline to the work visa.

The OPT program can function as internship vehicle, a chance to gain experience in the U.S. before returning home, as well as a bridge to an H-1B visa once more visas are available this time next year.

Unlike a work visa, employers are not obligated to pay OPT workers prevailing wages protections. Some employers are recruiting OPT workers directly, and this helps to make it controversial.

The OPT program was limited to 12 months until 2008. Congress, deadlocked over immigration reform, was not raising the H-1B cap, so the Bush administration expanded the OPT program from 12 months to 29 months for STEM graduates. The Obama administration has kept this extension in place and has even expanded the number of eligible degrees.

The OPT extension was challenged in federal court by a consortium of groups, which argued that it depressed wages and cost U.S. workers job opportunities.

John Miano, the founder of the Programmers Guild, is one of the plaintiffs and an attorney on the case. He continues to argue that OPT program is a problem for U.S. workers.

Miano, in a post he wrote recently for the Center for Immigration Studies, cited an IBM India job ad on Monster.com for a full-time software engineer with one to two years of experience and a master's degree.

The advertisement, which is no longer posted, sought someone with an OPT work permit, someone who could is "authorized to work both in India and in the U.S. on Optional Practical Training." The advertisement was part of a program, called GBS LEAD (Leadership, Excellence, and Accelerated Development) Program "to develop technical leaders to work for clients around the world."

But from Miano's perspective, the job ad was saying this: "You have to be a foreign worker from India to apply for this job in the United States."

Douglas Shelton, a spokesman for IBM, disputed the claim "that these are U.S. based jobs 'taken' by foreign workers," he said. "They're not."

He said that the contact information, including the telephone number, is from IBM India. "This is not a U.S.-based job," said Shelton. "IBM provides 'fast track' training in the U.S. and these grads then go to work in India."

"Building skills in a mature market like the U.S. allows them to hit the ground running in India," Shelton said.

Ron Hira, a public policy professor at the Rochester Institute of Technology and high-skill immigration issues, said the policy rationale for extending the OPT to 29 months was to help bridge STEM graduates to H-1B cards.

"The worry was that the H-1B was capped out and some foreign graduates of U.S. universities weren't able to stay," said Hira. The ad makes a mockery of that rationale, he said.

Hira said the job ad illustrates "how leading technology companies are exploiting the obviously huge loopholes," and he believes that federal agencies, as well as Congress, should investigate how the OPT program is actually being used.

"There are absolutely no workforce protections for foreign or American workers with the OPT program. Foreign workers can be paid home country wages -- typically $7,000 per year for an Indian software engineer -- for doing work in the U.S.," said Hira. "And the company can legally displace American workers with workers on OPTs."

Shelton said that IBM is doing what the OPT program set out to accomplish: to provide training for the graduate before that person departs the United States after the studies are completed.

"In that context, hiring individuals on OPT to complete the training here and then have them return to their country, to work, is consistent with the regulatory intent," said Shelton.

Dan Costa, an immigration policy analyst at the Economic Policy Institute, said an important question is whether the job in the IBM ad could go to a U.S. worker or not. There is no way to check because there's no government review, he said.

But in general, Costa said that "if an OPT stays and works for almost two-and a-half-years, to me that suggests they're working at a permanent job, and not a brief internship or traineeship."

Jobs that are 29-months in length aren't temporary, said Costa. According to government data, the median employee tenure for workers age 25 to 34 is now 3.2 years, said Costa. "An OPT worker can get pretty close to that," he said.

Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is pthibodeau@computerworld.com.

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